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Senators cross floor in defeat of same sex marriage bill

TANYA NOLAN: A bill recognising same sex marriages overseas has been overwhelmingly voted down in the Senate. Labor MPs were granted a conscience vote on the issue.

Ten Labor senators, including a number of ministers, voted against it and Liberal Senator Sue Boyce crossed the floor on the vote.

Chief political correspondent Sabra Lane reports.

SABRA LANE: Parliament last year voted down two bills aimed at recognising same sex marriage.

Today's bill was aimed at recognising the marriages of gay and lesbian Australians who've been wed overseas.

DLP (Democratic Labor Party) Senator John Madigan flagged he'd vote against it, believing it was sneaky way to achieve same-sex marriage in Australia.

JOHN MADIGAN: I believe this bill calling for us to recognise foreign same sex marriages is basically a back door attempt to force same sex marriage onto Australians.

SUE BOYCE: I'm not normally in favour Mr Acting Deputy President of backdoor ways of doing things and this is what this bill is. It's a backdoor way to try and increase the pressure for same sex marriage in Australia.

SABRA LANE: That's Liberal Senator Sue Boyce. She indicated before the vote that she'd cross the floor against her party's position, which is that marriage is between a man and a woman.

SUE BOYCE: Within the Liberal Party one always has the option of exercising a free vote and if we are to vote on this legislation, I will be voting for this bill because I think it advances the cause of same sex marriage in Australia.

Same sex marriage is not going to be the end of the world for anybody, especially not for children or for couples in Australia.

PENNY WONG: If you subscribe to the principle of equality, and I am sure that most in this chamber would say that they do, then simply substitute words such as interracial or different age in lieu of same sex in this debate and see if it changes your view.

Can you imagine if anyone in this Parliament actually asserted that a couple in Australia could not get married because the person that they loved, well one of them was of a different skin colour. These notions are not only anachronistic, they are in fact offensive.

SABRA LANE: The Senate overwhelmingly voted it down.

JOHN HOGG: There being 28 ayes, 44 nos, the matter is resolved in the negative.

TONY ABBOTT: I appreciate Sue's position and we're not a Stalinist party, never have been, never will be. Obviously we have a clear position that we don't support gay marriage as a party.

SABRA LANE: Mr Abbott doesn't have a view yet on what he'd do if the leadership of the Labor Party changed hands after Parliament rises for the last time next Thursday.

TONY ABBOTT: Let's wait and see what happens.

SABRA LANE: There's still uncertainty within Labor about whether they'll be a challenge to Ms Gillard's position- some claim Mr Rudd has the numbers, though they're unsure the size of his majority. Ms Gillard's supporters say that's rubbish.

George Williams is the Anthony Mason Professor of Law at the University of New South Wales. He's a noted expert on the Constitution and is keeping a keen eye on what's happening in Canberra, particularly if there's change after Parliament rises.

GEORGE WILLIAMS: Well, that could be very tricky and in fact we're in unchartered waters then. There's really three scenarios that could arise. The first is that the independents, perhaps grudgingly, do transfer their support to a new leader of the Labor Party. That would give the Governor-General confidence that that new leader could be sworn in as prime minister.

The second possibility is they might say we've had enough of this, we're transferring our vote to Tony Abbott in which case he would become prime minister however close it is to the election.

The third and messy scenario is that the independents withdraw their support but don't indicate who they would support. In essence they're simply sitting in the middle and in that case it is possible we might go into a caretaker mode in the lead up to what might be an even earlier election.

It's possible also that Parliament might have to be recalled because in those circumstances it's Parliaments and vote on the floor of Parliament that determines the numbers so it's possible that it might even be the final sitting of Parliament this week. They might have to come back it again to make it clear who actually the government of this country is.

SABRA LANE: And what would the Governor-General want to see to satisfy herself that the Government should be allowed to continue governing if there is a change in leaders.

GEORGE WILLIAMS: Well, look the first thing to understand is the Governor-General doesn't normally act in these situations as an independent decision maker. What she would do is act on the advice of the outgoing prime minister.

So normally if Julia Gillard loses that job, Julia Gillard would advise the Governor-General who to appoint as her replacement.

SABRA LANE: What you're saying is the Governor-General would want to see first off a letter perhaps of resignation from the current Prime Minister saying that she's resigned her commission and that Caucus maybe has elected someone else?

GEORGE WILLIAMS: Well, that's right and that's how the conventions work here, that our Governor-General doesn't act as an independent agent. She acts on advice except in the rarest of circumstances and in fact very few governors-general ever in our history have acted other than in advice and of course, John Kerr's dismissal of the Whitlam government is an example of that and shows how controversial it is for a governor-general to act independently.

So you would expect an outgoing prime minister to provide a written resignation and advice as to who should be invited to form a new government and it's only if the Governor-General has serious concerns about that advice and its correctness that the Governor-General would even consider exercising an independent role.

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